Law Times

June 7, 2010

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STORE & SHRED Exceptional Quality at Reasonable Prices! COPY, SCAN, Call us today to fi nd out how much you can Save. TF: 1.888.781.9083 www.docudavit.com $3.55 • Vol. 21, No. 19 ocdavit_LT_June7_10.indd 1 6/4/10 9:22:44 AM Inside This Issue 2 Civil Needs 7 Expedited Justice 9 Focus On Internet/ E-Commerce Law Quote of the week "Once you have been a victim of identity theft, your personal hell has just begun." — David Fewer, Canadian Internet Policy and Public Interest Clinic, See Assessing, page 11 Covering Ontario's Legal Scene Untitled-3 1 www.twitter.com/lawtimes June 7, 2010 5/5/10 3:55:30 PM LSUC passes 'defective' bylaw But bencher promises to address flaws in governance reforms BY MICHAEL McKIERNAN Law Times T he debate over governance reform rumbles on at the Law Society of Upper Canada even after the prov- ince enacted legislation enshrining term limits for benchers. At Convocation on May 27, critics turned what should have been a routine debate on new bylaws into a protracted aff air. Several benchers highlighted what they see as loopholes and defi ciencies in the provisions for grandfathered life benchers. Th omas Heintzman, chairman of the gov- ernance task force, came under criticism for rushing the changes through. Heintzman admitted many of the con- cerns raised warranted a closer look but in- sisted his proposed changes should go ahead regardless because they refl ect the policies passed by Convocation in December. "I think it's far better to have the mat- ter dealt with, have the bylaw enacted," he said. "I think this should be looked at seriously and I undertake to do so in my capacity to look at this issue immediate- ly, together with the others that we have addressed today." Th at approach angered Bencher Bob Aaron, who came out swinging against it. "Even the chair of the committee has admitted that we're getting it wrong," Aaron said. "What we're being asked to do today is a horrendous precedent. Let's pass the wrong bylaw. It's bad policy, it's not transparent, it's dumb." Th e bylaw amendments, which eventually current benchers who have served fewer than 16 years entitled to stand again at the next election in 2011. After that, benchers will only be allowed to serve for 12 years. But Aaron, who was fi rst elected in 1995, suggested benchers elected in that year could resign days before the next election to stay under the 16-year cut-off and re- main eligible to run. "Th ere are many ways in which these bylaws can be manipulated," said Heintz- man. "We did as a committee the best job we can do to put the principle in the bylaw. If that sort of thing occurs, Convocation is going to have to deal with it at the time. I wouldn't call it a loophole." Aaron disagreed. "I would call it a defec- 'What we're being asked to do today is a horren- dous precedent,' says Bob Aaron. passed 37-11 with two abstentions, fi lled in the blanks on term limits as well as the roles of grandfathered life benchers and the newly created class of emeritus benchers. Queen's Park has already done its part by passing a bill containing amendments to the Law So- ciety Act last month. Term limits will take eff ect in stages, with tive bylaw," he retorted. Current life benchers, former treasurers, and former attorneys general grandfathered under the new bylaws can have their right to vote and participate in debates stripped from them if they fail to attend four con- secutive Convocations but may also win them back by improving their attendance. Harvey Strosberg, a former treasurer, is worried that kind of treatment could stig- matize benchers with good reasons to miss meetings. "I know that no one intends to put them in a corner with a cap, facing their portrait," he said. "But it seems unnecessary to deprive them of the right to participation in debate." Heintzman agreed to look into Strosberg's concerns but said he was reluctant to address them immediately. Instead, he stressed that See We, page 5 a Law Society of Upper Canada appeal panel ruled the original proceedings had "compromised the appearance of fairness" and created a "reasonable apprehen- sion of bias." Appeal panel finds bias at LSUC hearing A BY MICHAEL McKIERNAN Law Times Toronto lawyer has won his appeal of disciplinary fi ndings against him after for the majority in the appeal, identifi ed 16 interventions that crossed the line. "Th e panel chair intervened al- most from the outset of the case," he wrote. "Th e nature and form of his lengthy questions during the examination-in-chief of the lawyer departed from the proper role of neutral fact-fi nder and ap- peared to be cross-examination." Cengarle's lawyer, Matthew Licio Cengarle will get a new disciplinary hearing after the ap- peal ruling that interventions by the original panel, led by chair- man and law society Bencher Ross Murray, gave the appear- ance of "descending into the arena and assuming the role of the prosecution." Bencher Larry Banack, writing Wilton, says his client was rat- tled by Murray's approach. "He was essentially suggesting TitlePlus_LT_Mar9_09 2/27/09 11:23 AM Page 1 that [Cengarle's] entire legal po- sition defi ed logic," Wilton says. "Th at's a fairly strong charac- terization to make about a law- yer's evidence during their direct examination. It was obviously very off -putting to my client to be giving evidence in direct ex- amination when essentially the chair was heaping scorn upon the position he was taking." At one stage, according to Wilton, Murray asked him to get Cengarle to change his position. "I think a party has a right to put forth their defence and give evidence in support of their de- fence, and it would be unusual for a trier of fact to suggest that the party not put forth that de- fence," Wilton says. Th e panel made 56 interven- tions in total during examina- tion of the lawyer and his expert witness, asking a total of 214 questions. However, the ap- peal panel, ruling that most of those interventions were entirely appropriate, denied Cengarle's Together we have all the tools To ensure your clients get the most comprehensive coverage in one title insurance policy, take a look at the TitlePLUS Program , your Bar-related real estate partner! 1 ® PROTECTION AS GOOD AS IT GETS 1-800-410-1013 ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS and LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. titleplus.ca 1 Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®). Contact LAWPRO for brokers in Saskatchewan, Manitoba, Alberta and Québec. TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. ® Follow on assertion that the sheer volume of questions created the appearance of bias. In 2004, the law society charged Cengarle with profession- al misconduct for confl ict of inter- est while acting as an estate trustee and solicitor without adequate disclosure to the benefi ciaries. It also alleged he had breached his fi - duciary duty as trustee by making nine imprudent unsecured loans from the estate. In 2008, after the hearing panel had found him guilty, Cengarle received a two-month suspension and a lifetime pro- hibition from acting for both borrowers and lenders in private mortgage transactions. Th e original trustee used See Cengarle, page 5 Click here to subscribe today to LAW TIMES www.lawtimesnews.com

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